CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of __________, 2003 by and between SEI PRIVATE
TRUST COMPANY, a savings association supervised by the Office of Thrift
Supervision ("SEI Trust"), and BACAP Alternative Multi-Strategy Fund, LLC, a
Delaware limited liability company (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund wishes to retain SEI Trust to provide custodian services
and SEI Trust wishes to furnish custodian services to the Fund, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS.
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any other person
authorized by the Fund to give Oral or Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be limited
by setting forth such limitation in a written document signed by both
parties hereto.
(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury book-entry system
for United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "CHANGE OF CONTROL" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(g) "ORAL INSTRUCTIONS" mean oral instructions received by SEI Trust from
an Authorized Person or from a person reasonably believed by SEI Trust
to be an Authorized Person. SEI Trust may, in its sole discretion in
each separate instance, consider and rely upon instructions it
receives from an Authorized Person via electronic mail as Oral
Instructions.
(h) "SEI TRUST" means SEI Private Trust Company or a subsidiary or
affiliate of SEI Private Trust Company that is qualified under the
1940 Act to provide the services contemplated.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(k) "SHARES" mean the shares of limited liability company interest of any
series or class of the Fund.
(l) "PROPERTY" means:
(i) any and all securities and other investment items which the Fund
may from time to time deposit, or cause to be deposited, with SEI
Trust or which SEI Trust may from time to time hold for the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii)all proceeds of the sale of any of such securities or investment
items; and
(iv) all proceeds of the sale of securities issued by the Fund, which
are received by SEI Trust from time to time, from or on behalf of
the Fund.
(m) "WRITTEN INSTRUCTIONS" mean (i) written instructions delivered by
hand, mail or facsimile sending device and signed by two Authorized
Persons and received by SEI Trust or (ii) trade instructions
transmitted by means of an electronic transaction reporting system
which requires the use of a password or other authorized identifier in
order to gain access.
2. APPOINTMENT. The Fund hereby appoints SEI Trust to provide custodian services
to the Fund, and SEI Trust accepts such appointment and agrees to furnish such
services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide SEI Trust with the following:
(a) atSEI Trust's request, certified or authenticated copies of the
resolutions of the Fund's Managers, approving the appointment of SEI
Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of the Fund's advisory and sub-advisory agreements;
(d) a copy of the distribution/underwriting agreements with respect to
each class of Shares;
(e) a copy of the Fund's administration agreement;
(f) copies of any distribution and/or member servicing plans and
agreements made in respect of the Fund or a class thereof; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS. SEI Trust undertakes to comply with applicable
requirements of the Securities Laws and laws, rules and regulations of
governmental authorities having jurisdiction with respect to the duties to be
performed by SEI Trust hereunder. Except as specifically set forth herein, SEI
Trust assumes no responsibility for compliance with such laws by the Fund or any
other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, SEI Trust shall act only
upon Oral Instructions or Written Instructions.
(b) SEI Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from a
person reasonably believed by SEI Trust to be an Authorized Person)
pursuant to this Agreement. SEI Trust may assume that any Oral
Instructions or Written Instructions received hereunder are not in any
way inconsistent with the provisions of organizational documents of
the Fund or of any vote, resolution or proceeding of the Fund's
Managers or of the Fund's members, unless and until SEI Trust receives
Written Instructions to the contrary.
(c) The Fund agrees to forward to SEI Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions are
given by SEI Trust or its affiliates) so that SEI Trust receives the
Written Instructions by the close of business on the same day that
such Oral Instructions are received by SEI Trust. The fact that such
confirming Written Instructions are not received by SEI Trust or
differ from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions or SEI Trust's ability to rely upon such Oral
Instructions provided that if SEI Trust receives confirming Written
Instructions that differ from SEI Trust's understanding of the Oral
Instructions and SEI Trust is in a position to correct the transaction
or transactions to conform to the confirming Written Instructions
without assuming liability, SEI Trust will reasonably attempt to make
reasonable appropriate corrections to conform to the Written
Instructions, but in no event shall SEI assume any liability for its
failure to do so for any reason.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If SEI Trust is in doubt as to any action it
should or should not take, SEI Trust may request directions or advice,
including Oral Instructions or Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If SEI Trust shall be in doubt as to any question
of law pertaining to any action it should or should not take, SEI
Trust may request advice from counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or SEI Trust, at
the option of SEI Trust), and provided that SEI Trust has notified and
received authorization from the Fund, such cost shall be borne by the
Fund.
(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions SEI Trust receives
from the Fund, and the advice it receives from counsel, SEI Trust
shall be entitled to rely upon and follow the advice of counsel.
(d) PROTECTION OF SEI TRUST. SEI Trust shall be indemnified by the Fund
and without liability for any action SEI Trust takes or does not take
in reliance upon directions or advice or Oral Instructions or Written
Instructions SEI Trust receives from or on behalf of the Fund or from
counsel and which SEI Trust believes, in good faith, to be consistent
with those directions or advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon SEI Trust (i) to seek such directions or
advice or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which are in
the possession or under the control of SEI Trust shall be the property of the
Fund. Such books and records shall be prepared and maintained as required by the
1940 Act and other applicable securities laws, rules and regulations. The Fund
and Authorized Persons shall have access to such books and records at all times
during SEI Trust's normal business hours. Upon the reasonable request of the
Fund, copies of any such books and records shall be provided by SEI Trust to the
Fund or to an authorized representative of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. Each party shall keep confidential any information relating
to the other party's business ("Confidential Information"). Confidential
Information shall include (a) any data or information that is competitively
sensitive material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies, finances,
operations, customer relationships, customer profiles, customer lists, sales
estimates, business plans, and internal performance results relating to the
past, present or future business activities of the Fund or SEI Trust, their
respective subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them; (b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or SEI Trust a
competitive advantage over its competitors; (c) all confidential or proprietary
concepts, documentation, reports, data, specifications, computer software,
source code, object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and (d) anything
designated as confidential. Notwithstanding the foregoing, information shall not
be subject to such confidentiality obligations if it: (a) is already known to
the receiving party at the first time it is obtained; (b) is or becomes publicly
known or available through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of the receiving party's
knowledge, is not under a duty of confidentiality; (d) is released by the
protected party to a third party without restriction; (e) is required to be
disclosed by the receiving party pursuant to a requirement of a court order,
subpoena, governmental or regulatory agency or law (provided the receiving party
will provide the other party written notice of such requirement, to the extent
such notice is permitted); (f) is relevant to the defense of any claim or cause
of action asserted against the receiving party; or (g) has been or is
independently developed or obtained by the receiving party. Notwithstanding the
foregoing, to the extent SEI Trust receives any information relating to Fund
shareholders, including non-public personal information, SEI Trust shall comply
with SEI Trust's privacy policy (as provided to the Fund) and all applicable
laws (including Regulation S-P) concerning the privacy of such information.
9. COOPERATION WITH ACCOUNTANTS. SEI Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable action to make any
requested information available to such accountants as reasonably requested by
the Fund.
10. SEI SYSTEM. SEI Trust shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized by SEI Trust in connection with the
services provided by SEI Trust to the Fund.
11. DISASTER RECOVERY. SEI Trust shall maintain a commercially reasonable
disaster recovery plan and shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures, SEI Trust shall, at
no additional expense to the Fund, take reasonable steps to minimize service
interruptions. SEI Trust shall have no liability with respect to the loss of
data or service interruptions caused by equipment failure provided such loss or
interruption is not caused by SEI Trust's own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties or obligations under this
Agreement.
12. COMPENSATION. As compensation for the services rendered by SEI Trust under
this Agreement, the Fund will pay to SEI Trust a fee or fees as may be agreed to
in writing from time to time by the Fund and SEI Trust. The Fund acknowledges
that SEI Trust may receive float benefits in connection with maintaining certain
accounts required to provide services under this Agreement. SEI Trust agrees to
comply with reasonable requests of the Board of Managers of the Fund for
additional information concerning this Agreement and the services performed
hereunder.
13. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless SEI Trust
and its affiliates, including their respective officers, directors, agents and
employees, from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, reasonable attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws) arising directly or indirectly from
any action or omission to act which SEI Trust takes in connection with the
provision of services to the Fund; provided, that, neither SEI Trust, nor any of
its affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) caused by SEI Trust's or its affiliates' own willful
misfeasance, bad faith, negligence or reckless disregard in the performance of
SEI Trust's activities under this Agreement.
The provisions of this Section 13 shall survive termination of this Agreement.
14. RESPONSIBILITY OF SEI TRUST.
(a) SEI Trust shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or as may
be specifically agreed to by SEI Trust and the Fund in a written
amendment hereto. SEI Trust shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to act in
good faith in performing services provided for under this Agreement.
SEI Trust shall be liable only for any damages arising out of SEI
Trust's failure to perform its duties under this Agreement to the
extent such damages arise out of SEI Trust's willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties under this
Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (i) SEI
Trust shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control and without
gross negligence, including without limitation acts of god; action or
inaction of civil or military authority; public enemy; war; terrorism;
riot; fire; flood; sabotage; epidemics; labor disputes; civil
commotion; interruption, loss or malfunction of utilities,
transportation, computer or communications capabilities; insurrection;
elements of nature; or non-performance by a third party; provided in
each case that SEI Trust has maintained a commercially reasonable
disaster recovery plan and (ii) SEI Trust shall not be under any duty
or obligation to inquire into and shall not be liable for the validity
or invalidity, authority or lack thereof, or truthfulness or accuracy
or lack thereof, of any Oral or Written Instruction, direction,
notice, instrument or other information which SEI Trust reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
SEI Trust nor its affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by SEI Trust or its affiliates.
(d) Noparty may assert a cause of action against SEI Trust or any of its
affiliates that allegedly occurred more than 12 months immediately
prior to the filing of the suit (or, if applicable, commencement of
arbitration proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
The provisions of this Section 14 shall survive termination of this Agreement.
15. DESCRIPTION OF SERVICES. SEI Trust shall perform the custodian services set
forth in Schedule A hereto. SEI Trust may sub-contract with third parties to
perform certain of the services to be performed by SEI Trust hereunder;
provided, however, that SEI Trust shall remain as responsible to the Fund for
the acts and omissions of such other entities as if SEI Trust had itself
performed those acts or omissions. In meeting its duties hereunder, SEI Trust
shall have the general authority to do all acts deemed in SEI Trust's reasonable
good faith belief to be necessary and proper to perform its obligations under
this Agreement.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated by
the Fund or SEI Trust on sixty (60) days' prior written notice to the other
party. In the event this Agreement is terminated (pending appointment of a
successor to SEI Trust or vote of the members of the Fund to dissolve or to
function without a custodian of its cash, securities or other property), SEI
Trust shall not deliver the Fund's cash, securities or other property to the
Fund. It may deliver them to a bank or trust company of SEI Trust's choice,
having an aggregate capital, surplus and undivided profits, as shown by its last
published report, of not less than twenty million dollars ($20,000,000) and
qualifying as a custodian for purposes of the 1940 Act, as a custodian for the
Fund to be held under terms similar to those of this Agreement. SEI Trust shall
not be required to make any delivery or payment of assets upon termination until
full payment shall have been made to SEI Trust of all of its fees, compensation,
costs and expenses (such expenses include, without limitation, expenses
associated with movement (or duplication) of records and materials and
conversion thereof to a successor service provider, or to a bank or trust
company pending appointment of such successor, and all trailing expenses
incurred by SEI Trust). SEI Trust shall have a security interest in and shall
have a right of setoff against the Property as security for the payment of such
fees, compensation, costs and expenses.
17. NOTICES. Notices shall be addressed (a) if to SEI Trust at Xxx Xxxxxxx
Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, Attention: General Counsel; (b) if to
the Fund, at Banc of America Capital Management, Bank of America Plaza,
NC1-002-33-31, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention, Chief
Administrative Officer and Legal Department ; or (c) if to neither of the
foregoing, at such other address as shall have been given by like notice to the
sender of any such notice or other communication by the other party. If notice
is sent by confirming electronic, hand or facsimile sending device, it shall be
deemed to have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given five days after it has been mailed. If notice
is sent by messenger, it shall be deemed to have been given on the day it is
delivered.
18. AMENDMENTS. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. SEI Trust may assign its rights and delegate its
duties hereunder to any affiliate of SEI Investments Company provided that SEI
Trust gives the Fund 30 days' prior written notice of such assignment or
delegation.
20. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
22. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) NOREPRESENTATIONS OR WARRANTIES. Except as expressly provided in this
Agreement, SEI Trust hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other person,
including, without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose or
otherwise (irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to services
provided under this Agreement. SEI Trust disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement.
(c) NOCHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding anything
in this Agreement to the contrary, the Fund agrees not to make any
modifications to its registration statement or adopt any policies
which would affect materially the obligations or responsibilities of
SEI Trust hereunder without the prior written approval of SEI Trust,
which approval shall not be unreasonably withheld or delayed.
(d) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(e) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Pennsylvania and governed by the laws of the State of Delaware,
without regard to principles of conflicts of law.
(f) PARTIAL INVALIDITY. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(h) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
SEI PRIVATE TRUST COMPANY
By: ______________________
Title: ___________________
BACAP ALTERNATIVE MULTI-STRATEGY FUND, LLC
By: _____________________
Title: __________________
SCHEDULE A
DESCRIPTION OF SERVICES.
SEI Trust shall provide the following list of services to the Fund:
1. DELIVERY OF THE PROPERTY. The Fund will deliver or arrange for delivery to
SEI Trust, all the Property owned by it, including cash received as a
result of the distribution of Shares, during the term of this Agreement.
SEI Trust will not be responsible for such property until actual receipt.
2. RECEIPTS AND DISBURSEMENT OF MONEY. SEI Trust, acting upon Written
Instructions, shall open and maintain separate accounts in the Fund's name
using all cash received from or for the account of the Fund, subject to
the terms of this Agreement.
SEI Trust shall make cash payments from or for the Accounts of the Fund
only for:
(a) purchases of securities in the name of the Fund, SEI Trust, SEI
Trust's nominee or a sub-custodian or nominee thereof as provided in
Section 9 and for which SEI Trust has received a copy of the broker's
or dealer's confirmation or payee's invoice, as appropriate;
(b) purchase or redemption of Shares of the Fund delivered to SEI Trust;
(c) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory, management fees
or similar expenses which are to be borne by the Fund;
(d) payment to, subject to receipt of Written Instructions, the Fund's
investor services agent, as agent for the members, of an amount equal
to the amount of dividends and distributions stated in the Written
Instructions to be distributed in cash by the investor services agent
to members, or, in lieu of paying the Fund's investor services agent,
SEI Trust may arrange for the direct payment of cash dividends and
distributions to members in accordance with procedures mutually
agreed upon from time to time by and among the Fund, SEI Trust and
the Fund's investor services agent.
(e) payments, upon receipt of Written Instructions, in connection with
the conversion, exchange or surrender of securities owned or
subscribed to by the Fund and held by or delivered to SEI Trust;
(f) payments made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(g) other payments, upon Written Instructions.
SEI Trust is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the
Accounts.
3. RECEIPT OF SECURITIES; SUB-CUSTODIANS.
SEI Trust shall hold all securities received by it for the Accounts in a
separate account that physically segregates such securities from those of any
other persons, firms or corporations, except for securities held in a
Book-Entry System. All such securities shall be held or disposed of only upon
Written Instructions of the Fund pursuant to the terms of this Agreement. SEI
Trust shall have no power or authority to assign, hypothecate, pledge or
otherwise dispose of any such securities or investment, except upon the
express terms of this Agreement or upon Written Instructions authorizing the
transaction.
At SEI Trust's own expense and for its own convenience, SEI Trust may enter
into sub-custodian agreements with other banks or trust companies to perform
duties described in this Section 3 with respect to domestic assets. Such bank
or trust company shall have an aggregate capital, surplus and undivided
profits, according to its last published report, of at least one million
dollars ($1,000,000), if it is a subsidiary or affiliate of SEI Trust, or at
least twenty million dollars ($20,000,000) if such bank or trust company is
not a subsidiary or affiliate of SEI Trust. In addition, such bank or trust
company must be qualified to act as custodian and agree to comply with the
relevant provisions of applicable rules and regulations. Any such arrangement
will not be entered into without prior written notice to the Fund (or as
otherwise provided in the 1940 Act).
In addition, SEI Trust may enter into arrangements with sub-custodians with
respect to services regarding foreign assets. Any such arrangement will be
entered into subject to the approval of the Board of Managers of the Fund
(and in compliance with in the 1940 Act).
SEI Trust shall remain responsible for the performance of all of its duties
as described in this Agreement and shall hold the Fund harmless from its own
acts or omissions, under the standards of care provided for herein, or the
acts and omissions of any sub-custodian chosen by SEI Trust under the terms
of this Section 3.
4. TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral Instructions or
Written Instructions and not otherwise, SEI Trust, directly or through the
use of the Book-Entry System, shall:
(a) deliver any securities held for the Fund against the receipt of
payment for the sale of such securities;
(b) execute and deliver to such persons as may be designated in such Oral
Instructions or Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the authority of
the Fund as owner of any securities may be exercised;
(c) deliver any securities to the issuer thereof, or its agent, when such
securities are called, redeemed, retired or otherwise become payable
at the option of the holder; provided that, in any such case, the
cash or other consideration is to be delivered to SEI Trust;
(d) deliver any securities held for the Fund against receipt of other
securities or cash issued or paid in connection with the liquidation,
reorganization, refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise of any
conversion privilege;
(e) deliver any securities held for the Fund to any protective committee,
reorganization committee or other person in connection with the
reorganization, refinancing, merger, consolidation, recapitalization
or sale of assets of any corporation, and receive and hold under the
terms of this Agreement such certificates of deposit, interim
receipts or other instruments or documents as may be issued to it to
evidence such delivery;
(f) make such transfer or exchanges of the assets of the Fund and take
such other steps as shall be stated in said Oral Instructions or
Written Instructions to be for the purpose of effectuating a duly
authorized plan of liquidation, reorganization, merger, consolidation
or recapitalization of the Fund;
(g) release and deliver or exchange securities owned by the Fund in
connection with any conversion of such securities, pursuant to their
terms, into other securities;
(h) release and deliver securities owned by the Fund for the purpose of
redeeming in kind shares of the Fund upon delivery thereof to SEI
Trust; and
(i) release and deliver or exchange securities owned by the Fund for
other purposes.
SEI Trust must also receive a certified resolution describing the
nature of the corporate purpose and the name and address of the
person(s) to whom delivery shall be made when such action is pursuant
to Section 4(i).
5. USE OF BOOK-ENTRY SYSTEM. SEI Trust is authorized and instructed, on a
continuous basis, to deposit in the Book-Entry System all securities
belonging to the Fund eligible for deposit therein and to utilize the
Book-Entry System to the extent possible in connection with settlements of
purchases and sales of securities by the Fund, and deliveries and returns
of securities loaned, subject to repurchase agreements or used as
collateral in connection with borrowings. SEI Trust shall continue to
perform such duties until it receives Written Instructions or Oral
Instructions authorizing contrary actions.
SEI Trust shall administer the Book-Entry System as follows:
(a) With respect to securities of the Fund which are maintained in the
Book-Entry System, the records of SEI Trust shall identify by
Book-Entry or otherwise those securities belonging to the Fund.
(b) Assets of the Fund deposited in the Book-Entry System will at all
times be segregated from any assets and cash controlled by SEI Trust
in other than a fiduciary or custodian capacity but may be commingled
with other assets held in such capacities.
SEI Trust will provide the Fund with such reports on its own system of
internal control as the Fund may reasonably request from time to time.
6. REGISTRATION OF SECURITIES. All Securities held for the Fund which are
issued or issuable only in bearer form, except such securities held in the
Book-Entry System, shall be held by SEI Trust in bearer form; all other
securities held for the Fund may be registered in the name of the Fund,
SEI Trust, the Book-Entry System, a sub-custodian, or any duly appointed
nominee of the Fund, SEI Trust, Book-Entry System or sub-custodian. The
Fund reserves the right to instruct SEI Trust as to the method of
registration and safekeeping of the securities of the Fund. The Fund
agrees to furnish to SEI Trust appropriate instruments to enable SEI Trust
to hold or deliver in proper form for transfer, or to register in the name
of its nominee or in the name of the Book-Entry System or in the name of
another appropriate entity, any securities which it may hold for the
Accounts and which may from time to time be registered in the name of the
Fund.
7. VOTING AND OTHER ACTION. Neither SEI Trust nor its nominee shall vote any
of the securities held pursuant to this Agreement by or for the account of
the Fund, except in accordance with Written Instructions. SEI Trust,
directly or through the use of the Book-Entry System, shall execute in
blank and promptly deliver all notices, proxies and proxy soliciting
materials received by SEI Trust as custodian of the Property to the
registered holder of such securities. If the registered holder is not the
Fund, then Written Instructions or Oral Instructions must designate the
person who owns such securities.
8. TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of contrary
Written Instructions, SEI Trust is authorized to take the following
actions:
(a) COLLECTION OF INCOME AND OTHER PAYMENTS.
(i)collect and receive for the account of the Fund, all income,
dividends, distributions, coupons, option premiums, other
payments and similar items, included or to be included in the
Property, and, in addition, promptly advise the Fund of such
receipt and credit such income, as collected, to the Fund's
custodian account;
(ii) endorse and deposit for collection, in the name of the Fund,
checks, drafts, or other orders for the payment of money;
(iii) receive and hold for the account of the Fund all securities
received as a distribution on the Fund's securities as a result
of a stock dividend, share split-up or reorganization,
recapitalization, readjustment or other rearrangement or
distribution of rights or similar securities issued with respect
to any securities belonging to the Fund and held by SEI Trust
hereunder;
(iv) present for payment and collect the amount payable upon all
securities which may mature or be, on a mandatory basis, called,
redeemed, or retired, or otherwise become payable on the date
such securities become payable; and
(v) take any action which may be necessary and proper in connection
with the collection and receipt of such income and other payments
and the endorsement for collection of checks, drafts, and other
negotiable instruments.
(b) MISCELLANEOUS TRANSACTIONS.
(i) SEI Trust is authorized to deliver or cause to be delivered
Property against payment or other consideration or written
receipt therefor in the following cases:
(a) for examination by a broker or dealer selling for the
account of the Fund in accordance with street delivery
custom;
(b) for the exchange of interim receipts or temporary securities
for definitive securities; and
(c) for transfer of securities into the name of the Fund or SEI
Trust or a sub-custodian or a nominee of one of the
foregoing, or for exchange of securities for a different
number of bonds, certificates, or other evidence,
representing the same aggregate face amount or number of
units bearing the same interest rate, maturity that, in any
such case, the new securities are to be delivered to SEI
Trust.
(ii) unless and until SEI Trust receives Oral Instructions or Written
Instructions to the contrary, SEI Trust shall:
(a) pay all income items held by it which call for payment upon
presentation and hold the cash received by it upon such
payment for the account of the Fund;
(b) collect interest and cash dividends received, with notice to
the Fund, to the account of the Fund;
(c) hold for the account of the Fund all stock dividends, rights
and similar securities issued with respect to any securities
held by SEI Trust; and
(d) execute as agent on behalf of the Fund all necessary
ownership certificates required by the Internal Revenue Code
or the Income Tax Regulations of the United States Treasury
Department or under the laws of any state now or hereafter
in effect, inserting the Fund's name on such certificate as
the owner of the securities covered thereby, to the extent
it may lawfully do so.
9. PURCHASES OF SECURITIES. SEI Trust shall settle purchased securities upon
receipt of Oral Instructions or Written Instructions that specify:
(a) the name of the issuer and the title of the securities, including
CUSIP number if applicable;
(b) the number of shares or the principal amount purchased and accrued
interest, if any;
(c) the date of purchase and settlement;
(d) the purchase price per unit;
(e) the total amount payable upon such purchase;
(f) the name of the person from whom or the broker through whom the
purchase was made. SEI Trust shall upon receipt of securities
purchased by or for the Fund pay out of the moneys held for the
account of the Fund the total amount payable to the person from whom
or the broker through whom the purchase was made, provided that the
same conforms to the total amount payable as set forth in such Oral
Instructions or Written Instructions.
10.SALES OF SECURITIES. SEI Trust shall settle sold securities upon receipt
of Oral Instructions or Written Instructions that specify:
(a) the name of the issuer and the title of the security, including CUSIP
number if applicable;
(b) the number of shares or principal amount sold, and accrued interest,
if any;
(c) the date of trade and settlement;
(d) the sale price per unit;
(e) the total amount payable to the Fund upon such sale;
(f) the name of the broker through whom or the person to whom the sale was
made;
(g) the location to which the security must be delivered and delivery
deadline, if any; and
SEI Trust shall deliver the securities upon receipt of the total amount
payable to the Fund upon such sale, provided that the total amount payable
is the same as was set forth in the Oral Instructions or Written
Instructions. Notwithstanding the other provisions thereof, SEI Trust may
accept payment in such form as shall be satisfactory to it, and may
deliver securities and arrange for payment in accordance with the customs
prevailing among dealers in securities.
11. REPORTS; PROXY MATERIALS.
(a) SEI Trust shall furnish to the Fund the following reports:
(1) such periodic and special reports as the Fund may reasonably
request;
(2) a monthly statement summarizing all transactions and entries for
the account of the Fund, listing each portfolio security
belonging to the Fund with the adjusted average cost of each
issue and the market value at the end of such month and stating
the cash account of the Fund including disbursements;
(3) the reports required to be furnished to the Fund pursuant to Rule
17f-4 of the 1940 Act; and
(4) such other information as may be agreed upon from time to time
between the Fund and SEI Trust.
(b) SEI Trust shall transmit promptly to the Fund any proxy statement,
proxy material, notice of a call or conversion or similar
communication received by it as custodian of the Property. SEI Trust
shall be under no other obligation to inform the Fund as to such
actions or events. For clarification, upon termination of this
Agreement SEI Trust shall have no responsibility to transmit such
material or to inform the Fund or any other person of such actions or
events.
12.CREDITING OF ACCOUNTS. If SEI Trust in its sole discretion credits an
Account with respect to (a) income, dividends, distributions, coupons,
option premiums, other payments or similar items on a contractual payment
date or otherwise in advance of SEI Trust's actual receipt of the amount
due, (b) the proceeds of any sale or other disposition of assets on the
contractual settlement date or otherwise in advance of SEI Trust's actual
receipt of the amount due or (c) provisional crediting of any amounts due,
and (i) SEI Trust is subsequently unable to collect full and final payment
for the amounts so credited within a reasonable time period using
reasonable efforts or (ii) pursuant to standard industry practice, law or
regulation SEI Trust is required to repay to a third party such amounts so
credited, or if any Property has been incorrectly credited, SEI Trust
shall have the absolute right in its sole discretion without demand (but
upon prior Oral or Written notice) to reverse any such credit or payment,
to debit or deduct the amount of such credit or payment from the Account,
and to otherwise pursue recovery of any such amounts so credited from the
Fund. Nothing herein or otherwise shall require SEI Trust to make any
advances or to credit any amounts until SEI Trust's actual receipt
thereof. The Fund hereby grants a first priority contractual possessory
security interest in and, [subject to an obligation in each case to
provide prior notice and a reasonable period to cure], a right of setoff
against the assets maintained in an Account hereunder in the amount
necessary to secure the return and payment to SEI Trust of any advance or
credit made by SEI Trust (including charges related thereto) to such
Account.
13.COLLECTIONS. All collections of monies or other property in respect, or
which are to become part, of the Property (but not the safekeeping thereof
upon receipt by SEI Trust) shall be at the sole risk of the Fund. If
payment is not received by SEI Trust within a reasonable time after proper
demands have been made, SEI Trust shall notify the Fund in writing,
including copies of all demand letters, any written responses and
memoranda of all oral responses and shall await instructions from the
Fund. SEI Trust shall not be obliged to take legal action for collection
unless and until reasonably indemnified to its satisfaction. SEI Trust
shall also notify the Fund as soon as reasonably practicable whenever
income due on securities is not collected in due course and shall provide
the Fund with periodic status reports of such income collected after a
reasonable time.
SCHEDULE B
Fees
The Fund shall pay SEI Trust compensation at the annual rate of .005% of the net
assets of the Fund. Such compensation shall be calculated and accrued monthly,
and paid to SEI Trust quarterly, within 10 business days of quarter-end.
03564.0004 #393635v2
